Clemency rare on Texas' death row

Perry uses clemency sparingly on death rowGovernor has never called off an execution on a claim of innocence

LISE OLSEN, HOUSTON CHRONICLE

Published 5:30 am, Saturday, October 17, 2009

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court. In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.

Yet in Texas, it is almost never granted. In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows. Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline.

Most of the nation's 35 death penalty states grant clemency powers to the governor. In the other eight states, including Texas, the governor relies on recommendations from a parole board. Perry uses the State Board of Pardons and Paroles, whose members he appoints, to decide whether to commute death sentences or grant longer reprieves — though he can and has carried out an execution the board voted to halt.

On his own, the governor can issue last-minute reprieves of up to 30 days. Perry has done so only twice.

The Willingham case

Perry has come under fire in recent weeks for his rapid dismissal of just such a request from Cameron Todd Willingham, executed in 2004. To the end, Willingham claimed he was innocent of setting a house fire that killed his three daughters. Though an arson expert's opinion faxed to Perry's office 88 minutes before the execution cast doubt on Willingham's guilt, the governor has refused to release records to indicate whether he read it before the man was put to death.

In an e-mail sent by his office, Perry defended his clemency review process as careful and thorough. Prior to executions, a member of the governor's general counsel's staff reads case documents and briefs Perry at least once.

“The governor believes making decisions in death penalty cases is one of the most serious considerations a governor is asked to give,” the statement said. “He believes that all cases deserve the kind of careful review he and his staff provide. He weighs the totality of all issues.”

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful.

“No matter where you stand on capital punishment, I think we can all agree that life and death decisions should be taken more seriously than sending a fax,” said Sen. Rodney Ellis, D-Houston, a longtime reform advocate and death penalty supporter who oversaw three executions as acting governor in 2000.

“Since 1999, I have been pushing legislation to make the Board of Pardons and Paroles' clemency process in death penalty cases more fair and open, to at least get on a conference call before they vote to take someone's life,” he said.

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency.

“I don't think they care whether a person is guilty or not guilty,” Burwell said.

Perry had used his power to issue last-minute delays twice before Willingham's execution in 2004. But neither involved a claim of potential innocence. He granted a 30-day reprieve in 2002 to allow authorities to interview a condemned man about other crimes. He delayed another execution because of court closures caused by the Sept. 11 attacks.

Perry granted his first and only reprieve for a death row inmate claiming innocence in December 2004, 10 months after Willingham's execution. Acting on a board recommendation, Perry delayed for 120 days the execution of Frances Newton, a Houston woman convicted of the 1987 shooting of her husband and children, “to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders.”

“After a lengthy review of the trial transcript, appellate court rulings and clemency proceedings, I see no evidence of innocence,” Perry said. “However, I am granting the additional time. ... Justice delayed in this case is not justice denied.”

“After a lengthy review of the trial transcript, appellate court rulings and clemency proceedings, I see no evidence of innocence,” Perry said. “However, I am granting the additional time. ... Justice delayed in this case is not justice denied.”

The tests were not exculpatory, and Newton was executed.

Spared by high court

In 2005, Perry commuted the sentences of 28 death row inmates convicted of murders committed before turning 18. Those commutations were ordered by the U.S. Supreme Court decision. He did the same thing in the two other cases involving severely mentally disabled offenders affected by another high court decision.

Only rarely has the Texas parole board recommended commutation of a death sentence without a high court mandate. But it did so in May 2004.

Kelsey Patterson shot and killed two people in Palestine in 1992 and then returned home, laid down his gun, removed everything but his socks and began walking up and down the street. Though found competent, Patterson, a paranoid schizophrenic, ranted at trial about devices planted inside him. As his execution approached, Patterson failed to recognize his lawyers. The board voted to spare his life.

Perry sent him to his death.

In 2007, the board again recommended commutation in the case of Kenneth Foster, the admitted getaway driver in a San Antonio murder who had been convicted in the same trial as the shooter. Perry commuted Foster's sentence to life in prison on the day he was to have been executed.

“After carefully considering the facts of this case, along with the recommendation from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence,” Perry said. “I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously.”

Perry later supported reforms to end joint capital murder trials in Texas.

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